The Upper Tribunal has found in the case of MSM (journalists; political opinion; risk) Somalia [2015] UKUT 00413 (IAC) [BAILII](with UNHCR intervening) that a Somali journalist would be at risk of persecution if returned to Somalia and that, crucially, he cannot be expected to change profession in order to avoid persecution. Many thanks to Chelvan, who was Counsel, for highlighting and sharing it over two weeks ago (this is an updated version of that original post).

The official headnote reads:

1. The enforced return of the Appellant, a journalist, from the United Kingdom to his country of origin, Somalia, would expose him to a real risk of persecution on the ground of actual or imputed political opinion and/or a breach of his rights under Articles 2 and 3 ECHR.
2. It is probable that, in the event of returning to Somalia, the Appellant will seek and find employment in the media sector.
3. The Appellant is not to be denied refugee status on the ground that it would be open to him to seek to engage in employment other than in the media sector.
4. Documents such as Home Office Country Information Guidance and Country of Information publications and kindred reports should not be forensically construed by the kind of exercise more appropriate a contract, deed or other legal instrument. Reports of this kind are written by laymen, in laymen’s language, to be read and understood by laymen. Thus courts and tribunals should beware an overly formal or legalistic approach in construing them. Furthermore, reports of this type should be evaluated and construed in their full context.
5. In cases where the Secretary of State seeks to withdraw a concession, or admission, the Tribunal should adopt a broad approach, taking into account in particular its inquisitorial jurisdiction, the public law overlay, the imperative of considering all relevant evidence and fairness to the litigant.

The determination is particularly interesting on the question of whether a person seeking refugee status can be expected to change their conduct in order to avoid being persecuted. The panel reviews the relevant UK, EU and Australian authorities and concludes that the Home Office argument that the Refugee Convention does not protect a person’s chosen profession was misguided on the facts of the case because in fact the persecution arose from imputed political opinion, which the appellant could not control anyway.

In comparing the jurisprudence, the panel finds there there may be some dissonance between the approach of the Court of Justice of the European Union reflected in Joined cases C-199-201/12 X, Y and Z (sexuality) and Joined cases C-71/11 and C-99/11 Y and Z (religion) and the UK Supreme Court case of HJ (Iran) [2010] UKSC 31. If so, the tribunal remarks, EU law must take precedence.

The point of dissonance is that in EU law there is no room for a person to avoid persecution by voluntary modification of conduct or voluntary discretion. In HJ (Iran) there is perhaps some room for voluntary change of behaviour if this is purely a matter of personal preference rather than being necessary to avoid persecution. The tribunal concludes:

In short, the possibility of conduct entailing the avoidance of [sic?] modification of certain types of behaviour related directly to the right engaged is irrelevant. Thus this possibility must be disregarded.

The Home Office had also argued in MSM that the modification of behaviour under scrutiny in the case would not involve the forfeiture of a fundamental human right and therefore the refugee claim could not succeed. The panel disagrees, holding rather that freedom of expression is in fact a fundamental right and

the suggestion that there are different degrees in the exercise of the right to espouse and express political opinions … invites a quantitative assessment which, in our opinion, is not merely impracticable but is not harmonious with the nature of the right in question. We consider that interference with this particular right is not to be measured by reference to the extent to which the exercise of one right is adversely affected by the conduct, threatened or actual, of the persecutor. This approach, in our view, neglects the intrinsic nature of the right, which permits and protects the unconstrained expression of a political opinion at any time, at the choice of the individual, as frequently or infrequently as may be desired, subject only to limitations which do not arise in this appeal. This is the quintessence of the underlying right, namely freedom of expression. Moreover, to accede to this argument would be tantamount to reinstating the discredited concept of marginal versus core. Finally, it suffers from the further infirmity that its operation would be utterly impracticable in cases of imputed political opinion.

Great result for the appellant, really interesting refugee law issue and good to see a rare intervention by UNHCR as well. Those involved were Mr S Chelvan and Ms V Hutton and Ms J Smeaton (all of Counsel), instructed by Duncan Lewis and Company Solicitors,  Ms DJ Rhee (of Counsel), instructed by the Treasury Solicitor and Ms M Demetriou QC, acting pro bono, instructed by Baker and McKenzie LLP for UNHCR as intervenors.

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